Why is Gulfisha Fatima still behind bars? The UAPA accused has spent 18 months behind bars

09, Oct 2021 | CJP Team

Gulfisha, commonly known as Gul, among her family and friends, was arrested on April 9 last year, in FIR 48 of 2020 related to the communal violence in the National Capital. FIR 48 was registered at Jafrabad Police Station under Indian Penal Code sections of murder, rioting, being part of unlawful assembly, and sedition.

After her bail was dismissed on May 3, 2020, she was finally granted bail in FIR 48 on May 13 by the Sessions Judge. In the meantime, by April 19, she was slapped with charges under the anti-terror law, i.e., Unlawful Activities (Prevention) Act, 1967 in FIR 59 of 2020.

She has been accused of many serious charges in the four FIRs against her. The Police, under the control of the union home ministry, have alleged that the 28-year-old was physically present at the spot i.e., road block site/protest at 66 Foota Road, under Jafrabad Metro Station, Delhi from February 22 to 24.

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They alleged that she “conspired and “constantly instigated” the locals since December 2019, under the garb of peaceful protests against CAA, NRC and NPR. She has been alleged to have opened an office near the protest site where she planned the riots with her other associates, including Khalid, Natasha, Devangana and even her lawyer Mehmood Pracha!

She has also been accused of instigating the people to “be violent”, use stones, lathis, firearms on the Police and create a “surcharge atmosphere”.

After her arrest, her brother, Aqil Hussain, had moved a habeas corpus plea in the Delhi high court challenging her arrest. But on June 22, 2020, the high court bench of Justices Vipin Sanghi and Rajnish Bhatnagar dismissed her plea and ruled that she cannot be in “illegal detention” because she was in judicial custody. The court further held that the decision of the Additional Sessions Judge to remand her in judicial custody till June 25 was correct and to hold otherwise “would cause public disorder, confusion and mischief”.

Her lawyer Mehmood Pracha had argued that since UAPA was invoked in FIR 59, matters of bail and judicial remand could only be heard by a special court set up under the National Investigation Agency (NIA) Act. But the court opined that his reliance placed on the NIA act was “completely misleading”.

The HC order may be read here:

While in custody, she has also been implicated in FIR 83 of 2020, registered at Seelampur. However, she was granted bail by the court on July 20, 2020. In October 2020, the sessions court dismissed her plea for default bail (in the UAPA case) on grounds that the charge sheet was filed within the extended time period and that her application had no merits. She was also named in FIR 50 of 2020 registered at Jafrabad for “instigating the local people to indulge in rioting”.

She had stated in her plea that she had already been in custody for 183 days (as on October 12, 2020), and since no charge sheet had been filed against her within the mandatory 90 days period by the Police, she should be released on bail under section 167(2) of the Cr.PC. But the court said, “There is no merit in the present application. Accordingly, the present application of accused Gulfisha Fatima under Section 167 (2) Cr.PC stands dismissed.”

It is noteworthy that this order dated October 19, 2020 was delivered just a week after the Supreme Court judgment, wherein it was ruled that the right to default bail is not just a statutory right, but a fundamental right (Bikramjit Singh vs State of Punjab, 2020). This case, which also dealt with a matter under the Unlawful Activities (Prevention) Act (UAPA), where the accused was denied a plea for default bail, the court had said, “We must not forget that we are dealing with the personal liberty of an accused under a statute which imposes drastic punishments.”

During the hearing of her default bail, she had also complained to the court that she had been facing harassment in jail, by the authorities. She had alleged, “They called me educated terrorist and are hurling communal slurs at me. I am facing mental harassment here. If I hurt myself, only jail authorities will be responsible for it.” The court was willing to change the jail staff but not grant her bail.

The ASJ’s order may be read here:

A month later, in November 2020, the sessions court granted her bail in FIR 50 under Indian Penal Code charges of murder, attempt to murder, unlawful assembly, mischief and other relevant sections of the Arms Act and Prevention of Damage to Public Property Act. The Court observed that the accused Gulfisha was in custody since June 3, 2020 in this FIR and that “the co­-accused Devangana Kalita and Natasha Narwal have already been granted bail in the case and their role is stated to be similar to the present applicant/accused.”

The Delhi Police argued that she should not be enlarged on bail as she is also involved in FIR 59, under serious charges of terrorism. But the court said, “As far as FIR No. 59/20 is concerned, we will cross the bridge when we come to it.”

The order may be read here:

In July, 2020, with no relief in sight, the Delhi high court dismissed her habeas corpus plea in the UAPA case. The high court said, “This petition is completely misplaced and is not maintainable”. The court further said, “The facts will show that the petitioner is in judicial custody and detention, therefore, cannot be termed as illegal.”

The order may be read here:

She has now applied for regular bail before the Sessions Court. But the regular hearing has been delayed due to the prosecution’s new argument on maintainability. This started with co-accused Ishrat Jahan’s application where the Delhi police argued that her plea under section 439 (Special powers of High Court or Court of Session regarding bail) of the CrPC was not maintainable and should have been filed under section 437 (deals with the provisions of when bail matters may be taken up in case of a non-bailable offence).

This compelled some of the accused persons like Umar Khalid, Khalid Saifi to withdraw their pleas and file fresh ones. Gulfisha’s lawyer Pracha argued that the Police was indulging in “diversionary tactics”. The court is yet to adjudicate on the maintainability matter.

While her co-accused and fellow jail inmates Natasha Narwal and Devangana Kalita were granted bail in June this year, Gulfisha Fatima remains incarcerated awaiting regular bail. Since the Delhi police have raised a maintainability issue after almost six months of arguments, the judicial process has been delayed indefinitely.

Related:

100 days and counting, free Gulfisha Fatima: Activists

Delhi riots: Activist Gulfisha Fatima gets bail, but will remain in jail under UAPA

HRD Ishrat Jahan awaits bail in Delhi Violence Case

Delhi violence: Jailed activist Gulfisha Fatima accuses Delhi Police of diversionary tactics